Governors are immune, SC concedes; Recalls notice to Rajkhowa

Just a few days after ordering Arunachal Pradesh Governor J.P. Rajkhowa to respond why he recommended President’s rule in the sensitive border State, the Supreme Court recalled the order on Monday, saying it made a “mistake” by not realising that Governors have “complete immunity” and are not answerable to courts for acts done in their official capacity.

A five-judge Bench, led by Justice J.S. Khehar, graciously accepted its slip-up, saying it would be only “just and appropriate” to take back the notice issued to Mr. Rajkhowa on January 27.

The notice was issued on a petition by Rajesh Tacho, chief whip of the Congress Legislature Party, contending that the Governor and the Centre “played [a] fraud on the Constitution” and President’s rule should be quashed.

“If we have made a mistake, we will recall our order… there is no problem,” Justice Khehar said.

The turn of events was triggered by Attorney-General Mukul Rohatgi, for the Centre, drawing the Bench’s attention to Article 361 (1) of the Constitution which gives the President and the Governor protection from legal action.

Under the Article, both the President and the Governor of a State “shall not be answerable to any court” for acts done in performance of their powers and duties.

“The Governor has complete immunity and a notice cannot be issued to him,” Mr. Rohatgi submitted.

To prove his point, he referred to the Constitution Bench judgment of 2006 in the Bihar Assembly dissolution case concerning Governor Buta Singh.

Rajesh Tacho, chief whip of the Congress Legislature Party in the Arunachal Pradesh Assembly had challenged in the Supreme Court the imposition of President’s rule in the sensitive border State. Mr. Tacho’s petition alleged that Article 356 had been misused by the Centre and the Governor to topple the democratically elected Congress government.

The petition wanted the Centre and the Governor to “furnish” records of the events culminating in the Union Cabinet’s recommendation on January 24 and the subsequent proclamation of President’s rule.

On January 27, the Bench issued notice to the Centre and the Governor to file their responses by January 29 and posted the case for hearing on Monday. It also asked the Governor to hand over his reports recommending President’s rule.

During the hearing on Monday, both Justices Khehar and Dipak Misra said they had not yet opened the sealed covers containing the Governor’s reports.